Madras High Court
Annalakshmi vs The State Rep. By Its on 19 October, 2023
2023/MHC/4783
W.P(MD)No.25293 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.10.2023
CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P(MD)No.25293 of 2023
Annalakshmi ... Petitioner
vs.
1. The State rep. by its,
The Secretary to Government of India,
Home Department,
Fort St.George,
Chennai – 600 009.
2. The Deputy Inspector General of Police,
Central Prison, Trichy.
3.The Superintendent,
Central Prison, Trichy. ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorarified Mandamus, to call for the records
pertaining to the rejection order in No.18769/tha ku.4/2023, dated
25.09.2023 issued by the third respondent to grant leave for 2 months
without escort to the detenu, Balraj S/o.Karupaiyya, aged about 27 years,
is a convict prisoner, bearing Convict No.23620 detained at Central
Prison, Trichy.
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W.P(MD)No.25293 of 2023
For Petitioner : Mr.S.Manoharan
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity,
convenience and clarity) has been filed in this Court on 16.10.2023 with
a certiorarified mandamus prayer assailing an 'order dated 25.09.2023
bearing reference No.18769/tha ku.4/2023' made by the third respondent
(hereinafter 'impugned order' for the sake of brevity, convenience and
clarity). To be noted, the mandamus limb of the prayer seeks two months
ordinary leave without escort for a prison inmate Thiru.Balraj S/o.
Thiru.Karupaiyya, aged about 27 years (Convict No.23620 now detained
in Central Prison, Trichy). It is also to be noted that prison inmate is writ
petitioner's spouse.
2. Writ petitioner sent a representation dated 21.09.2023 seeking
two months leave without escort for her spouse i.e., prison inmate on the
ground that she is in an advanced stage of pregnancy and that the prison
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W.P(MD)No.25293 of 2023
inmate has to make arrangements for the livelihood of his family owing
to the economic situation and owing to petitioner struggling with her
aged mother-in-law.
3. Dr.S.Manoharan, learned counsel for writ petitioner adverting to
Rule 20 of 'The Tamil Nadu Suspension of Sentence Rules,
1982' [hereinafter 'said Rules' for the sake of convenience and clarity]
submits that the grounds on which ordinary leave has been sought fit into
Clauses (i) and (vii) of Rule 20 of said Rules but the writ petitioner's
representation dated 21.09.2023 has been negatived by the third
respondent in and by the impugned order by citing Rule 22 of said Rules
and saying the two years imprisonment has not elapsed as the prison
inmate has been sentenced for more than five years but less than fourteen
years. To be precise, this is Rule 22(1)(b) of said Rules, which reads as
follows:
'22. Eligibility for ordinary leave.- (1) No prisoner shall
be granted ordinary leave unless he has been sentenced by
a court in this State to imprisonment for a term or
imprisonment for life for an offence against any law other
than a law relating to a matter to which the executive
power of the Union Government extends and he has
completed.-
(a) .......
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W.P(MD)No.25293 of 2023
(b) two years of imprisonment in cases of prisoners
sentenced to imprisonment for a period exceeding five
years but not more than fourteen years;”
4. Issue notice.
5. Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
accepted notice for all three respondents and submitted on instructions
that on the date of the impugned order i.e., 25.09.2023, the prison inmate
had completed two years but he will be entitled to only twenty one days
leave in the light of Rule 22(2)(a) of said Rules.
6. We carefully considered the rival submissions. We also perused
the case file and the relevant provisions. We also noticed our earlier order
in Selvam's case reported vide Neutral Citation of Madras High Court
{2023:MHC:4258}, being order dated 05.09.2023 in W.P.No.27137 of
2023, we had held that constitutional powers of this Court cannot be
abridged much less denuded by a Subordinate Legislation. We are
interfering with the impugned order, we shall be setting aside the same
and granting one month ordinary leave without escort. The reasons are as
follows:
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W.P(MD)No.25293 of 2023
6.1 The impugned order has been made by the third respondent but
under said Rules, the authority who can grant ordinary leave is not the
third respondent and it is the second respondent. To be noted, this is vide
Rule 19 of said Rules. It is further to be noted that Rule 10 of said Rules
provides for third respondent to deal with and grant emergency leave. In
the case on hand, what is being sought is ordinary leave without escort.
Therefore, the impugned order has been made by an authority who is not
vested with the power to deal with the applications for ordinary leave;
6.2 In the impugned order, the reasons on which leave has been
sought vide 21.09.2023 representation have not been subjected to
disputation or contestation;
6.3 Even according to the impugned order, the prison inmate has
not come to any adverse notice of the prison authorities;
6.4 Rule 22(2)(b) of said Rules nowhere puts a cap of twenty one
days for prisoners sentenced to imprisonment for a period exceeding five
years but under fourteen years and also saying that this can be only from
the third to fifth year of imprisonment;
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W.P(MD)No.25293 of 2023
6.5 The impugned order says that as on the date of the order
(25.09.2023), the prison inmate had served two years eleven months and
five days but come 25.10.2023, he would have completed three years and
he would become eligible even if Rule 22(2)(b) of said Rules is applied;
6.6 The reason given is very compelling in the facts and
circumstances of the case considering it is an advanced stage of
pregnancy and a first pregnancy qua the writ petitioner besides the
manner in which the family is circumstanced. As already alluded to
supra, the ground on which ordinary leave has been sought has not been
disputed or subjected to contestation and they fit into Rule 20(i) as well
as Rule 20(vii) of said Rules;
6.7 As already alluded to supra, this Court in Selvam's case
reported vide Neutral Citation of Madras High Court {2023:MHC:4258}
after respectfully following various judgments of Hon'ble Supreme Court
had held that constitutional powers of this Court cannot be abridged
much less denuded by a Subordinate Legislation. To be noted, said Rules
is Subordinate Legislation having been made by the Executive Arm in
exercise of Rule making power under Section 432(5) of 'The Code of
Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of
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W.P(MD)No.25293 of 2023
brevity and clarity];
6.8 Though twenty one days leave have been sought, we shall now
be granting one month leave as the common proviso to Sub Rule (2) of
Rule 22 of said Rules says that maximum period in one spell can extend
up to 40 days.
7. In the light of the narrative, discussion and dispositive reasoning
thus far, the following order is made:
7.1 The impugned order is set aside for reasons
alluded to supra;
7.2 The prison inmate, namely, Thiru.Balraj S/o.
Thiru.Karupaiyya, aged 27 years (Convict No.23620), now
detained in Central Prison, Trichy, is granted one month
leave from 25.10.2023 to 25.11.2023. To be noted, it is one
month ordinary leave without escort;
7.3 The prison inmate shall sign before jurisdictional
Magistrate (Judicial Magistrate, Perambalur) every Monday
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W.P(MD)No.25293 of 2023
and Friday in the forenoon;
7.4 The prison inmate shall surrender in the office of
the third respondent on the leave period elapsing by dusk
i.e., (5.30 p.m.) on 25.11.2023 (Saturday);
7.5 The prison inmate shall utilize the leave only for
the purpose for which it has been availed/granted and shall
not be part of any other activities which is outside the realm
of the grounds on which leave has been granted.
8. Captioned WP is disposed of in the aforesaid manner. There
shall be no order as to costs.
(M.S., J.) (R.S.V., J.)
19.10.2023
Index : No
Internet : Yes
Neutral Citation : Yes
PKN
P.S: Registry to forthwith communicate this order to Jail authorities
in Central Prison, Trichy.
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W.P(MD)No.25293 of 2023
To
1.The Secretary to Government of India,
Home Department,
Fort St.George,
Chennai – 600 009.
2. The Deputy Inspector General of Police,
Central Prison, Trichy.
3.The Superintendent,
Central Prison, Trichy.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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W.P(MD)No.25293 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
PKN
ORDER MADE IN
W.P(MD)No.25293 of 2023
19.10.2023
https://www.mhc.tn.gov.in/judis
